FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRUCKSTOP.NET, LLC, 

Plaintiff-Appellee, No. 07-35123

v. D.C. Nos.

S CV-04-00561-S- PRINT CORPORATION,

Defendant-Appellant,  BLW

CV-05-00138-S- SPRINT COMMUNICATIONS COMPANY, BLW L.P.,

Defendant-counter-claimant- OPINION

Appellant. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

June 3, 2008—Seattle, Washington

Filed October 28, 2008

Before: Melvin Brunetti, Jay S. Bybee, and

Consuelo M. Callahan, Circuit Judges.1

Opinion by Judge Callahan

1This case was argued before Ferguson, Brunetti and Callahan, Circuit

Judges. Following Judge Ferguson’s death, Judge Bybee was drawn by lot

to replace Judge Ferguson. Judge Bybee has read the briefs, reviewed the

record, and listened to oral argument. 

14987
COUNSEL

Stephen R. Thomas, Esq. (Argued), C. Clayton Gill, Esq.,

Moffatt, Thomas, Barrett, Rock & Fields, Chartered, for

defendant-appellant Sprint Corporation and defendantcounter-claimant-appellant Sprint Communications Company

L.P. 

Timothy P. Getzoff, Esq. (Argued), Steven B. Andersen, Esq.,

Amanda K. Brailsford, Esq., Holland & Hart LLP, for

plaintiff-appellee Truckstop.net L.L.C. 

TRUCKSTOP.NET v. SPRINT COMMUNICATIONS 14989
OPINION

CALLAHAN, Circuit Judge:

The threshold issue in this appeal is a rather straightforward

question: Do we have appellate jurisdiction under the collateral order doctrine to review a district court’s interlocutory

order addressing whether an inadvertently disclosed e-mail is

protected by the attorney-client privilege? We hold that

because the allegedly privileged information has already been

disclosed we do not have jurisdiction and thus dismiss this

appeal.

I.

In 2003, Truckstop.net (“Truckstop”) entered into an agreement with Sprint Communications Company L.P. (“Sprint

Communications”), a subsidiary of Sprint Corporation. Under

this agreement, Sprint Communications was to design, install,

and test standardized wireless local area networks

(“WLANs”) at certain truck stops and provide data circuits

that would allow Truckstop’s customers to access the Internet

through those WLANs. Truckstop filed the instant lawsuit

over a dispute regarding Sprint Communications’ design and

installation of the WLANs. 

During the course of pretrial discovery, Sprint Communications produced more than 470,000 electronic images to Truckstop. In its sixteenth supplemental production of documents,

Sprint Communications inadvertently disclosed a September

2004 e-mail from Sprint employee Deborah Neal to three of

her co-workers (“Neal e-mail”). The e-mail discusses Neal’s

impressions and recollections of a meeting with Sprint Communications’ legal department, along with statements of facts

derived from other sources. Once Sprint Communications

realized that it had inadvertently disclosed this e-mail, it filed

a Motion to Determine Privilege. 

14990 TRUCKSTOP.NET v. SPRINT COMMUNICATIONS
The district court ordered redacted as protected by the

attorney-client privilege those portions of the Neal e-mail that

either directly related to, or gave impressions based on, attorney advice, and those that recollected attorney advice for the

purpose of informing others in need-to-know positions so that

they could implement the attorney advice. The court found

that the remaining portions of the e-mail were not protected

by the attorney-client privilege because they consisted of

statements that were either factual in nature or did not directly

relay impressions based on or recollections of attorney advice.

Sprint Communications then filed this interlocutory appeal. 

II.

[1] Under 28 U.S.C. § 1291, our jurisdiction is typically

limited to “final decisions” of the district courts. Accordingly,

the general rule is that discovery orders are interlocutory in

nature and nonappealable under section 1291. KL Group v.

Case, Kay & Lynch, 829 F.2d 909, 918 n.5 (9th Cir. 1987)

(citations omitted). The Supreme Court, however, has held

that under the collateral order doctrine a party may appeal

from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal

system, nonetheless be treated as final.” Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal

citation and quotation marks omitted). An order is immediately appealable under the collateral order doctrine when it

“(1) conclusively determines the disputed question, (2)

resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal

from a final judgment.” Sell v. United States, 539 U.S. 166,

176 (2003) (quoting Coopers & Lybrand v. Livesay, 437 U.S.

463, 468 (1978)). We have held that “[t]his determination

should not be made lightly because the principle that appellate

review should be deferred pending the final judgment of the

district court is central to our system of jurisprudence.”

United States v. Amlani, 169 F.3d 1189, 1192 (9th Cir. 1999).

“Strict application of the requirements is particularly imporTRUCKSTOP.NET v. SPRINT COMMUNICATIONS 14991
tant because, when a court identifies an order as an appealable, collateral one, it determines the appealability of all such

orders.” SEC v. Capital Consultants LLC, 453 F.3d 1166,

1171 (9th Cir. 2006) (per curiam). “Because collateral jurisdiction requires all three elements,” the court “lack[s] collateral order jurisdiction if even one [element] is not met.”

McElmurry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1140

(9th Cir. 2007). 

III.

[2] We have recognized that a district court’s order requiring the disclosure of privileged material is often “irreparable

by any subsequent appeal.” UMG Recording, Inc. v. Bertelsmann AG (In re Napster, Inc. Copyright Litig.), 479 F.3d

1078, 1088 (9th Cir. 2007) (quoting United States v. Griffin,

440 F.3d 1138, 1142 (9th Cir. 2006) (internal quotation marks

omitted)); see also Bittaker v. Woodford, 331 F.3d 715, 717-

18 (9th Cir. 2003) (finding that a protective order was appealable under the collateral order doctrine because “[i]f petitioner

relies on the protective order by releasing privileged materials

and it turns out to be invalid, he will suffer serious prejudice

during any retrial”). We have treated such orders as “effectively unreviewable on appeal from a final judgment” under

the third prong of the collateral order doctrine because

“[o]nce ‘[t]he cat is already out of the bag,’ it may not be possible to get back in.” In re Napster, 479 F.3d at 1088 (quoting

Agster v. Maricopa County, 422 F.3d 836, 838 (9th Cir. 2005)

(citation omitted)). If a party is required to comply with a district court’s order requiring the disclosure of privileged material and the party is “correct in his assertion of privilege, by

the time of trial he will have suffered the very harm that he

seeks to avoid, namely erroneous disclosure of privileged

material.” Griffin, 440 F.3d at 1142 (internal quotation marks

and citation omitted). 

[3] However, irreparable harm from the disclosure of the

allegedly privileged material has already taken place when the

14992 TRUCKSTOP.NET v. SPRINT COMMUNICATIONS
material has been inadvertently disclosed. In Bank of America

v. Feldman (In re Nat’l Mortgage Equity Corp. Mortgage

Pool Certificates Litig.), 821 F.2d 1422 (9th Cir. 1987),

National Mortgage appealed the denial of a request for a protective order concerning documents that it deemed privileged.

Id. at 1423. Bank of America filed a motion to dismiss for

lack of appellate jurisdiction. Id. In the meantime, all of the

disputed documents were turned over to Bank of America

pursuant to a stipulation that they would be returned if

National Mortgage succeeded in its appeal. Id. We declined

to exercise jurisdiction under the collateral order doctrine

because National Mortgage “already produced the requested

documents, and [stated that] we cannot [now] restore the privilege.” Id. at 1425. 

[4] Our position that a district court’s order concerning

inadvertently disclosed documents is generally not appealable

under the collateral order doctrine is also reflected in our decision in KL Group v. Case, Kay & Lynch, 829 F.2d 909. In that

case, KL Group filed an appeal following a grant of summary

judgment to Case, Kay & Lynch. On appeal, KL Group also

sought review of a pretrial protective order that required it to

return an inadvertently disclosed letter containing attorneyclient correspondence. Case, Kay & Lynch argued that the

appeal of the protective order was untimely because the protective order was a final disposition under the collateral order

doctrine and thus KL Group lost its right to challenge the district court’s order by failing to file an appeal within thirty

days of the order. Id. at 918 n.5. We rejected this “unwarranted expansion of the collateral order doctrine” and stated

that the court lacked appellate jurisdiction until there was a

final judgment on the merits. Id.

The Third Circuit has taken a similar position. In ADAPT

of Philadelphia v. Philadelphia Housing Authority, 417 F.3d

390 (3d Cir. 2005), ADAPT sought a list of public housing

units accessible to individuals with disabilities from the Philadelphia Housing Authority (“PHA”) to verify that PHA comTRUCKSTOP.NET v. SPRINT COMMUNICATIONS 14993
plied with a settlement agreement. Id. at 392-93. The district

court granted several motions to compel filed by ADAPT. Id.

at 393. PHA complied with the court’s order and then

appealed. Id. The Third Circuit dismissed the appeal, holding

that PHA failed to satisfy the “effectively unrevieweable on

appeal from a final judgment” prong of the collateral order

doctrine. Id. at 395. The court stated that “[t]he failure to consider these appeals now would not cause any significant harm

beyond that which occurred when PHA disclosed the disputed

information. Nor would reviewing the orders now ‘unscramble the egg scrambled by [PHA’s] disclosure.’ ” Id. (quoting

In re Ford Motor Co., 110 F.3d 954, 963 (3d Cir. 1997)). 

Moreover, our decision does not conflict with the District

of Columbia Circuit’s decision in In re Grand Jury Investigation of Ocean Transportation, 604 F.2d 672 (D.C. Cir. 1979).

In that case, Sea-Land Services, Inc. responded to a grand

jury subpoena and inadvertently disclosed purportedly privileged documents to the Antitrust Division of the Department

of Justice. It then filed an appeal from the district court’s

denial of a motion for the return of the alleged privileged documents. The D.C. Circuit concluded that it had appellate jurisdiction to consider Sea-Land’s motion to have the documents

returned under the collateral order doctrine, noting that 

Sea-Land must [be able to] pursue its claim of

attorney-client privilege at [that] time in order to

ensure that its claim not later become moot by reason of the documents’ disclosure to third parties.

Absent the present appeal, these documents could be

read or shown in the course of the grand jury proceedings to witnesses who would then be free under

Fed. R. Crim. P. 6(e) to disclose them. 

Id. at 674. The appeal fell within the collateral order doctrine

because the alleged irreparable harm was not the initial disclosure of the privileged materials to the government, but

their possible disclosure to third parties. The appeal was Sea14994 TRUCKSTOP.NET v. SPRINT COMMUNICATIONS
Land’s only opportunity for appellate review of its privilege

claim. The underlying case was a grand jury proceeding to

which Sea-Land was not a party and there was no final judgment from which Sea-Land could appeal. The fact that SeaLand’s disclosure to the government took place during a

grand jury proceeding and that the harm Sea-Land sought to

avoid was further disclosure to third parties presents a much

different scenario than the instant case.2

[5] Following our prior precedent, we hold that this court

lacks appellate jurisdiction under the collateral order doctrine

to consider Sprint Communications’ appeal. Although Sprint

Communications’ inadvertent disclosure during the course of

discovery of the Neal e-mail may be unfortunate, the chicken

has already flown the coop — the alleged harm from disclosure has already occurred. Sprint Communications has already

produced the allegedly privileged document and has not

alleged any additional harm that is not effectively reviewable

on appeal from a final judgment. The Supreme Court has cautioned that 

the ‘narrow’ exception [provided by the collateral

order doctrine] should stay that way and never be

2The District of Columbia Circuit more recently decided that it had

appellate jurisdiction under the collateral order doctrine to consider an

emergency stay pending an expedited appeal of the district court’s discovery order requiring that a party produce an allegedly privileged document

that had been partially disclosed by an opinion issued by the Supreme

Court of Victoria, Australia. United States v. Philip Morris Inc., 314 F.3d

612, 614-15 (D.C. Cir. 2003). The court concluded that this issue was

effectively unreviewable on appeal from a final judgment because the discovery order required the party to produce the entire privileged document,

including those portions that had not been previously disclosed. Id. at 619.

Thus, compliance with the discovery order mandating release of the entire

document would “mak[e] the issue of privilege effectively moot.” Id.

(citations omitted). The Philip Morris case is similar to our decision in In

re Napster where we found that we have appellate jurisdiction under the

collateral order doctrine to consider appeals of discovery orders mandating

the release of privileged documents. 

TRUCKSTOP.NET v. SPRINT COMMUNICATIONS 14995
allowed to swallow the general rule, that a party is

entitled to a single appeal, to be deferred until final

judgment has been entered, in which claims of district court error at any stage of the litigation may be

ventilated. 

Digital Equip. Corp., 511 U.S. at 868. Accordingly, because

we hold that we lack appellate jurisdiction under 28 U.S.C.

§ 1291, the appeal is DISMISSED. 

14996 TRUCKSTOP.NET v. SPRINT COMMUNICATIONS